Former CIA & NSA Boss: September 11th Gave Me Permission To Reinterpret The 4th Amendment

from the i-guess-the-terrorists-did-win dept

Michael Hayden, the former CIA and NSA director, has revealed what most people already suspected -- to him, the Constitution is a document that he can rewrite based on his personal beliefs at any particular time, as noted by Conor Friedersdorf at the Atlantic. Specifically, he admits that after September 11th, 2001, he was able to totally reinterpret the 4th Amendment to mean something entirely different:

In a speech at Washington and Lee University, Michael Hayden, a former head of both the CIA and NSA, opined on signals intelligence under the Constitution, arguing that what the 4th Amendment forbids changed after September 11, 2001. He noted that "unreasonable search and seizure," is prohibited under the Constitution, but cast it as a living document, with "reasonableness" determined by "the totality of circumstances in which we find ourselves in history."

He explained that as the NSA's leader, tactics he found unreasonable on September 10, 2001 struck him as reasonable the next day, after roughly 3,000 were killed. "I actually started to do different things," he said. "And I didn't need to ask 'mother, may I' from the Congress or the president or anyone else. It was within my charter, but in terms of the mature judgment about what's reasonable and what's not reasonable, the death of 3,000 countrymen kind of took me in a direction over here, perfectly within my authority, but a different place than the one in which I was located before the attacks took place. So if we're going to draw this line I think we have to understand that it's kind of a movable feast here."

While it's true that the 4th Amendment does ban "unreasonable search and seizure," it seems like quite an interpretation to argue that "reasonableness" depends on what some third party does to us. That seems morally dangerous -- and it seems like a direct admission to terrorists that if they want to eviscerate the rights of Americans, they just need to keep on attacking, because folks like Hayden will just interpret it to mean that they should take away more and more rights from Americans.

Then there was this other rather stunning admission. Hayden admits that the NSA wants to listen to anyone it finds "interesting," not just those they think are doing something bad:

"I am not a law enforcement officer. I don't suspect anybody. I am simply going out there to retrieve information that helps keep my countrymen free and safe. This is not about guilt. In fact, let me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information."

This is a rather refreshing admission -- as most of those who normally defend the surveillance state like to pretend that they're only listening to "bad" people. They trot out the "if you're not doing anything wrong, you have nothing to fear" argument all the time. Even Hayden himself has argued along those lines in the past. Yet here he is, more accurately saying that "if you're boring, you have nothing to fear" but "if we think you're interesting, you should be very afraid." And "interesting" is subject to a lot more vague interpretations than "reasonableness."

You can see his whole speech below, and while it's nice that he's finally admitting how malleable his own morals are, it's depressing that he ever had the power to use his flexible morals to spy on all of us -- and then did so.

Reader Comments

He explained that as the NSA's leader, tactics he found unreasonable on September 10, 2001 struck him as reasonable the next day, after roughly 3,000 were killed.

Totally reasonable. Might as well as wipe the Arabians from the Earth because TERRORISM, no? Because of 3k killed it's fine to go ahead and invade countries causing many more thousands to die. Because 3k is it reasonable to stomp justice and due process and fuck up the lives of millions of innocents. Because 3k it is reasonable to harass people in the airport. You can play that with drugs too.

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Not to mention that if his determination of what is "reasonable" actually boils down to the number of dead bodies as he says, then there the fourth amendment can be effectively suspended even if 9/11 never happened. We have constantly higher death rates from all kinds of other activities, after all.

What Hayden is actually saying here is "I am personally terrified, therefore you don't get to have your constitutional rights."

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um, yeah, well...seeing as how the revo war was about ultimately establishing said constitution, maybe that was a tad difficult to violate prospectively...

also, the harsh truth is, that 'our' (sic) gummint *has* violated and abandoned the constitutional protections on more than a few occasions, and certainly under the rubric of 'war' ! ! !*supposedly*, we 'learn' each time we do that to be -you know- eternally vigilant not to allow such transgressions to occur......until they do...

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"We have constantly higher death rates from all kinds of other activities, after all."

Exactly. The 9/11 deaths were equivalent to just 26 days worth of US road deaths in 2001, or 33 days worth of 2012 numbers. Where's the War on Car Crashes? Where are the Constitution-quashing laws put in place to prevent this far worse ongoing tragedy!

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Nobody said it does. Crazy simply begets more crazy, especially when you are a situation where you can only see things from a specific viewpoint - everything else then is simply reaffirming your views.

Slimeball

I find it "reasonable" that Michael Hayden should be executed for the damage he has done to our country and to all the other countries and citizens around the world with his reinterpretation of what is "reasonable".

Re: Slimeball

I think in the long game, you will find that M. Hayden is only a paid minion, an employee. Executing him for following orders from on high will serve no real purpose outside of revenge and even that will be served only remotely and ineffectively, as he can be replaced almost instantly in a bank-stressed economic climate that creates desperation.

Methinks it is time for the convening of Public Tribunals, wherein, those who direct these atrocities may be tried (in absentia most likely) by the public they refuse to serve, and where the evidence of their crimes may be lain out for public inspection and analysis, so that these self-serving men and women may become know to all citizens as the parasites they are.

Have you seen the bumper sticker??

I'm sorry, but I've reread the bill of rights and there's nothing in there about "circumstances".

You're full of shit, please let us know when we can schedule your shitectomy where we will temporarily remove your head, turn you upside down and drain the shit from your body.

Special Note: We've never successfully reattached a head after a shitectomy, so you're shit out of luck I'm afraid, but the world will be better off without you and your illegal and treasonous thinking in this matter.

Re: The stupid it burns...

They started with the probably cause, then they introduced a clause that NSA could do anything they wanted but not against americans. That is the sliding point.

Today americans are too difficult to distinguish from everybody else and voila: Sir Hayden argues that his permission to do anything overtrumphs the constitution when he says it does. Combined with the secrecy, that reverse evidentiary requirement and an assumption of everybody being non-american unless proven otherwise you are essentially designated a foreigner in your own land and Hayden can ignore the constitution. Now, combine that with the use of "enemy combatant" to circumvent international law, your protection against NSA is merely theoretical...

Re: Re: The stupid it burns...

They can pull a No True Scotsman and just argue that once an American does something they deem UnAmerican, they're no longer American (similar to the reasoning that allows them to kill US-born terrorists fighting against US Government interests outside of the US). Of course the definition of UnAmerican is subject to their flexible reasoning...

and 14 years later they still cant provide any credible evidence on the suspects other than "they said so!".They also admited that they killed jfk and landed on the moon, twice. They also came out as the "masterminds" behind the french attack but for some reason noone believed them this time...

Re: Astounding Doublethink/Newspeak

You see, Hayden only sees those men and women he works with and those who sign over the tax payer's money to his accounts and those people he drinks and parties with as "his countrymen".

The rest of you fucks are all part of the Evil Adversary Horde and he hates your guts because he fears that you might some day rise up and take away his and "his countrymen's" freedom to do as they damn well pleases at your expense.

yet another of those rare instances where I agree (mostly) with Mr Masnick.

I don't disagree with Hayden's description of the Constitution as a living document--I think it is. What I disagree with profoundly is his view that he gets to decide when and how it changes and adapts. To the contrary, it is absolutely clear that such adaptations must be made by the three branches of government, and must be able to be checked all the way up to the Supreme Court, which the NSA's insulation from all but the FISA court has guaranteed is impossible.

That is a violation of principles so fundamental that I am literally at a loss to see how Hayden can even have said these things in public.

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I don't disagree with Hayden's description of the Constitution as a living document--I think it is.

How exactly have you come to that conclusion? Does the ink on it take new forms over time? It is living, only in so much as there is a defined process for new ammendments. What is already written cannot, does not change. If you don't like it, get it changed, but you cannot just "redefine" it anytime you like.

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until the advent of "originalism" (the bankrupt and self-contradictory philosophy as far as I'm concerned, that declares we can figure out objectively what the Constitution meant in 1776 and should only make it mean what it meant then) the "living constitution" was the dominant form of Constitutional interpretation in the US, and continues to be the dominant form in other countries that have Constitutions.

the reason is simple: both the meanings of words and the facts of the world change faster than we can possibly keep the document updated. When the US Constitution was written, the word "men" in "All men are created equal" literally meant white men who owned property. Today, we hear that phrase very differently. We even tend to think it means "women." When we get to important across-the-board rights like due process, I know of nobody, not even Scalia, who insists that it applies only to "men." Yet that is what the text says, if we take it in its most literal sense.

The second amendment refers to "arms," but we today have "arms" of a variety the framers could never have imagined. We could amend the constitution every time a new weapon is developed, or we could recognize that law adapts and changes over time. Even the NRA does not argue that the 2nd amendment gives citizens the right to bear nuclear weapons, but there has never been a specific amendment to legislate about that.

I'm not making this up. It is widely-established theory of law. It is NOT widely established that single executive branch members get to take this power unto themselves. It requires the entire populace and its governmental representatives. It is not in any way an "anything goes" rule. It requires careful attention to previous cases, previous interpretations, legal histories, and much more. And it is done in public, not behind the closed doors of NSA.

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that declares we can figure out objectively what the Constitution meant in 1776

We can figure out very much of what was meant by reading the writings of the framers and signers. This is the part lots of people like to ignore so they can pretend it says something it doesn't.

but we today have "arms" of a variety the framers could never have imagined.

Yes, and so does the government. That is why citizens should be allowed to own AR 15s and such. The government has tanks, bombs and nukes. Of course the anti-gunners would like to say the citizens shouldn't have any guns, just a "militia". This is exactly what my first point makes a there are many who ignore the writings around the constitution.

As for the speed of change of this world, I would argue it doesn't change very fast at all. Sure technology chnages, but the things you do with those technologies are fully covered by laws already on the books. For example, using a drone with a video camera as a peeping tom instrument is easily covered by peeping tom laws. Why do we need new laws just for drones? So yes, things change, but people don't and anything a person can do wrongly to another is already covered.

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We can figure out very much of what was meant by reading the writings of the framers and signers. This is the part lots of people like to ignore so they can pretend it says something it doesn't.

I don't disagree for a second that this is an important part of jurisprudence. It just isn't the whole story.

One of the main reasons for this is that the framers and signers themselves did not agree about the meaning of the document--despite working together on The Federalist Papers, for example, Hamilton and Madison very quickly diverged in their understandings of many parts of the document. The states diverged even more. This, too, is abundantly clear in the record. There is no way to read "objectively" without interpreting.

The "we" I mentioned w/r/t second amendment meant everyone, including government. You do seem to be arguing that the second amendment gives individuals the right to bear nuclear arms. There is lots of reason in the history of constitutional interpretation to suggest that this is false, and its potential for huge destruction is beyond obvious. There is almost nobody who argues that this is the right interpretation of the second amendment. Are you really arguing that until and unless an amendment prohibiting the bearing of nuclear arms is passed, we just have to let people have nuclear weapons, even if the price is global thermonuclear war?

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The 2nd Amendment would seem to imply that the citizenry would able to possess the same equipment that their local police station not only has, but uses most every day. But not a single weapon that the typical SWAT team carries is legal in California, for instance.

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It also stands to reason that if the 2nd Amendment can be so flagrantly violated by the government, and for so long, then what's wrong with violating the 4th Amendment? Or just ignoring the Constitution completely?

Re: Re: Re: Third Amendment broken all the time by the NSA

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Hmmm... technically I have to agree.

While obviously not designated as a military agents on their pay stubs, I would think that even standard corporate espionage agents would be considered to be "soldiers" in the sense that they assist in the corporate effort in the never ending War on Competition.

Personally, I consider even the lowest of war-workers - the remote controllers of drone assassin bombs - as soldiers.

Anyone who does any sort of war work is a soldier IMO, right down to the girl in the war-general's office who makes his coffee.

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Maybe YOU don't get to redefine what it means. However the people in government do all the time, when laws are written, enforced, and pass the process of judication.

The changes in government that happened after 9/11 were the result of:A) Congress passing laws as a kneejerk reaction, and not vetting the current processes whereby information is collected like in the executive ordersB) the executive branch letting its people run wild and not checking itself or honestly reporting what was happeningC) the judicial branch operating in secret and not caring about the breach of the 4th amendment.

To quote a line from Serenity, "You know, in certain older civilized cultures, when men failed as entirely as you have, they would throw themselves on their swords."

I wish the people responsible for breaking the 4th amendment would come out and take responsibility for their actions. Instead we have smug idiots like Hayden that gloat about how they got away with what they did.

Impunity...

And the thing is, he won't be taken to task for it because the Attorney General won't prosecute him over it. So ignoring the Constitution is only part of it, say Sayonara to checks and balances, as well.

More than 3k died on US territory in the Civil War. I suppose we should all be snivellingly grateful that King Hayden has finally got around to making the tough decisions his snivellingly lazy and complacent forefathers never got around to.

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While not a forefather, Lincoln engaged in a few outright violations of the Constitution around the civil war, relying on similar justifications. This isn't actually anything new. That doesn't make in any less reprehensible, though.

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This is correct, in fact most Presidents "Good or Bad" (your choice) have all done something that is in Contravention of the Constitution. This makes it clear that no matter how much you like or hate your current leaders, as the electorate, you must be prepared to nail candidates to the proverbial cross the moment the even lean in the direction that supports this chicanery!

Those in Politics have found a very good way to avoid this... drive a wedge between the ideologies so that things like "we have to vote this party in or we get the douche from the other party" which leads people to hold their noses while picking the lesser of two evils when they vote, but still a vote for evil none the less.

If we worried more about making sure the corrupt were ran out of office on rails, we would find that we still have time and opportunity to get the candidates with the ideologies we want into office.

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The "official" history of the Civil War is a rather deceptive narrative. Abraham Lincoln completely shredded the Constitution -- far worse than any other president in US history. And anyone who dared to complain about Lincoln's abuse of power could expect to end up behind bars (or worse), as many newsmen of that era discovered.

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War Always Trumps Law.

One of the real reasons why every government loves war is that it is the one time that the men and women that compose a government can do all sorts of illegal things in secret - (usually to make boat loads of money) - and have the legal justification on their side if any of them gets caught.

Lost!!!!

Even Americans must realise that the few terrorists that flew planes into the towers won, they gave up their lives so that America would be so scared of them that they would give up their freedoms and stop abiding by their own constitution, which is nothing more than a piece of paper to those in power today.They ignore it whenever it gets in their way and use it whenever it helps them get what they want.

Sadly the police have become so powerful and more like a badly trained army than an enforcement against true crimes. So even the ability to protest has been removed and any protest is propagandized so well that even the people who support the protests in America start laughing at the people taking part.

Power corrupts

This is what the new authoritarian regimes will look like. Highly motivated individuals pursuing their own interpretations of morality ostensibly for the greater good.

Michael Hayden's actions were tyrannical, plain and simple. There are many others like him in power and without the sunlight of oversight and transparency they will continue to make decisions without the consent of the governed.

The NSA are the terrorists

They seem to be using fear to get what they want. Everything else just seems to be justification. I guess that having blackmail over the other branches negates the need for those pesky checks and balances that were put in by shortsighted dead people.

Reasonableness does depend on your point of view. If terrorists attack us and claim they will never stop, it is reasonable to try to put a stop to it. I have lost some to terrorism and don't blame them a bit at this point.

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I have lost some to terrorism and don't blame them a bit at this point.

In which case, as far as you're concerned anyway, congrats, you just handed them victory. By cowing down, by buckling under fear and becoming accepting of the idea of sacrificing real rights and freedoms for imaginary 'safety', you have done exactly what they wanted you to.

So again, congrats, people like you are the reason terrorism is able to succeed, it would fail completely if people simply had the courage to stand up and say 'No, I will not be afraid, and I will not sacrifice my rights and my principles for a phantom feeling of safety. Even if it costs me or those I care about our lives, freedom is worth the risk.'

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Long term conflict does suck. We still have people after us from 14 years ago... and maybe further back depending on certain people's opinion of the legal status of a conflict from the 50s. Terrorism sucks and the world is a weird place.

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And if anything they were doing was actually effective at doing what they claim it does, or didn't cause more damage than it prevented, you might have a point. There would still be the cost vs gain issue, but it would at least be worth considering.

But creating countless haystacks for real threats to hide in, making in-time threat prevention all but impossible is not helping. Undercutting, on a permanent basis(because the number of times a government agency will willingly give up power on it's own could be counted on a single hand), the rights and privacy of the people, is not helping. Destroying and weakening digital security, in order to make their jobs easier, is not helping.

They have done worlds of harm, and as far as I can tell, no good that wasn't overshadowed by the bad with their actions, so those 'emergency measures' need to go, as all they are doing is making things worse.

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Tell you what, you want to sacrifice your rights, and your privacy, if it will make you feel 'safer' to have someone 'watching over you', feel free to do so. But you want to support those that would inflict that on everyone else, skipping the whole 'informed consent' stage, that's where you're going to have people disagreeing with you.

Not all of us feel like hiding under the bed from the big bad terrorist, and letting our rights be undermined by government agencies who think they know better just what's 'best' for us, and are so sure of how right they are that they do everything they can to hide their actions both from the public itself, and the people who are supposed to provide a check to their actions.

The CIA oath reads: “I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” (Emphasis added)

Schooled CIA employees know that the Constitution also defines the role of federal employees: "To establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty."

Sooooo....finger-crossing and/or deliberate misunderstanding is an accepted part of taking an oath now?

the psychology of Hayden

I watched his talk and I think I understand him better since he seemed to be rather unguarded in his comments. First off, his world is organized into pre 9/11 and post 9/11 and, most interestingly, pre Snowden and post Snowden. His arrogance is telling and his condescension unreserved. He feels that it is his secret knowledge of the world's dangers that makes his decisions informed and correct and those who would disagree, uninformed and incorrect. He can't tell you the secret knowledge which motivates him and that knowledge will always have to stay secret. From my point of view it is his, and a lot of the intelligence community's, addiction to secrecy and culture of paranoia which leads him to readily sacrifice privacy to fight any threat, real or theoretical. They been immersed in this culture too long to see their own bias. I am shocked though that he felt, as director of the NSA, the right to unilaterally decide what "unreasonable" means in the 4th amendment. That is true arrogance!

The terrorists did exactly what their handlers told them to. Though I doubt they were told they would be used to setup a dictatorial police state where the rights of average citizens would be eroded to next to nothing and

Dangerous Man

It was good to see him a bit more humble than his usual cocky manner. I guess he realized that wouldn't work with this audience.

Not only does Hayden leave out the half of the 4th Amendment that requires warrants, probable cause supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized, he then pivots to a theme that essentially says none of that matters, nothing more than a good tale to get you to think he's a thoughtful man.

He's made it clear that we're talking about, in his own words, "gathering data or information or things, from the citizens of the republic", not some terrorist in Yemen, and then grants himself an exception to the Constitution on "foreign intelligence" grounds:

"[Glenn] Greenwald, [Laura] Poitras and others have used the language of law enforcement and justice in order to describe and criticize foreign intelligence collection. [...] I don't care. [...] I am not a law enforcement agency. I've never been part of law enforcement. I am part of foreign intelligence. That operates under different roles. [sic]"

"I actually started to do different things," he said. "And I didn't need to ask 'mother, may I' from the Congress or the president or anyone else"

So how does this not make him an enemy of the United States? I don't recall ever seeing any asterisks in the Constitution indicating these "constitutional rights" were conditional and that Michael Hayden reserved the ability to remove them at will. Was there a constitutional convention that I missed?

Michael Hayden: Traitor.

What can I say, if I were the sole witness to his execution, I would conveniently be looking the other way.

The Constitution is a living document and is subject to reinterpretation all the time. At one point, abortion was illegal, now its not, but some try to change that.

If the Constitution was firm, there would be no need for the Supreme Court.

It is not up to law enforcement or the NSA to figure out what is legal or not, that is for the law makers and the courts. That is why the White House has lawyers for. Don't blame this guy, blame his bosses.

As an employee of a for-profit corporation, the Chertoff Group, which makes its money by convincing the government that the sky is falling, it's Michael Hayden's job to be a scaremonger on one hand and an apologist for government abuses on the other. As such, it's hard to know how much of anything he says is his honest opinion vs. how much is a concocted sales pitch. But one thing is certain: the military-industrial-security complex (the United States' largest industry) will always be over-hyping the dangers and insisting the country needs more weaponry, more invasive security, and more spying -- because those are the things that these for-profit companies sell.

These folks dont understand the concept that if they dont follow it, or in this case uphold it, then why should others follow the laws, their essentially openining a can of worms without realising, which makes em stupid or ignorant.......or they think their above the law in the sense that they can break it and will enforce everyone else to follow the laws, thats bordering on the tyranical.........this alone, amongst other things, wil start to make people scrutinize their representatives more closely.......which i fear is the real target of terrorist law authority......bypassing human rights "legally"......and trying to justfy terrorist authority actions in the public opinion sphere.......if yiu think about it, you take the terrorist threat away, our respective governments would start looking like those they demonize very quickly

..i dont think they like the fact that the internet does a better job at representation, i think what it boils down to, is that they feel their positions threatened by this..........and i think putting down ANY resistance to their possition is their ultimate goal.....now normally, i might agree with that if facing violent atrocities, but i get the feeling EVERYBODY and EVERYTHING will be surpressed, and THAT i put above ANY threat

and he was put in charge of the most dangerous, or so it appears, security force in the USA? what he did was what he wanted to do and had been searching, waiting for an excuse to come to his aid. and look what has happened since! not just the USA but every country world wide is doing the same as he did with those under his command, turned them into the 'reds under the bed', where everyone is spying on everyone else and informing the authorities for no reason. didn't it occur to him and the others that regressing to the 50s-60s was the worst possible thing to do? look at what sort of world we now have, the same as was feared in the 30s-40s! and it's going to get worse unless there are major changes in government thinking and the power handed to those who are 'supposed to protect us'!!

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Treason!

The Constitution is a living document and open to interpretation, but it also very specific as to who is empowered to do that interpretation!

Which explains using every imaginable tactic to prevent any legal challenge to there actions! And to para-phrase 'If you make any peaceful/legal challenge impossible, you make a violent challenge inevitable."

Confirmation of suspicion .01 (confirmed)

(a.) secretly tossing the original constitution out altogether and then replacing it with a new document composed of similar, but very different language, and

(b.) secretly re-interpreting the meaning of the words that compose the constitution.

After 9/11, the Constitution of the United States was indeed secretly eliminated when new meanings for the words therein were created, completely without public input or public knowledge, by the men in power who were about to wage a secret war, against an un-named enemy, using a set of special secret laws that would make any atrocity they might perform, legally acceptable.

Using these new rules, they managed to rewrite and re-interpret the law to make the unfettered exploitation and surveillance of the American Public completely legal under the banner of the War on Drugs, and to wage war on various Non-Christian, Non-White nations, and destroy their social infrastructure, and steal their resources, under the banner of the War On Terror.

=================================

Confirmation of suspicion .02 (pending)

The Adversary=============

It is highly likely that a large part of the secret changes to the meanings of words in the constitution deals with the justification of declaring a secret war, in secret session, upon a secret enemy, including civilian populations, after a verified sneak attack by Known or Unknown Civilian Terrorists, on US soil.

If I was a megalomaniac millionaire with visions of godhood and the tax-payer's purse at my finger tips, that would be how I would do it.

NSA and GCHQ are scum

The NSA & GCHQ are using mass surveillance to gather potential blackmail information on politicians and judges. They are both criminal agencies. An illegal program that they are involved in called organized stalking is used to psychologically harass members of the public and they are also using the information that they are gathering up from the mass surveillance to do this.